Curtis-Setchell & McKie v Koeppen

• Jurisdiction: South Africa
• Judge: Roper J
• Judgment Date: 11 March 1948
• Hearing Date: 28 January 1948
• Court: Witwatersrand Local Division

Roper, J.:

This is an application for the substitution of the applicants as plaintiffs in a pending action instituted against the defendant Marguerite Koeppen by a partnership known as Curtis-Setchell, Lloyd and Matthews and consisting of two partners named Curtis-Setchell and Lloyd. After the issue of summons this partnership was dissolved and a new partnership was formed, named Curtis-Setchell

Roper J

and McKie and consisting of the aforesaid Curtis-Setchell and one McKie. The new partnership took over all book and other debts due to the old one, and it is the applicant in these proceedings.

Objection was taken to the application on two main grounds, namely that the Court had no power to order a substitution until after judgment; and alternatively that in the circumstances of this case the substitution should not be made as it would cause prejudice to the defendant.

There are numerous cases in which the Courts have substituted for the original parties their trustees in insolvency or their executors after death, but these are of no assistance in a case such as the present where a change of persona is involved.

Mr. Miller, for the respondent referred me to certain decisions in support of his main contention that a substitution cannot be made during the course of an action without the consent of the opposite party if it has the effect of introducing a new persona into the litigation. In Feltham v Schlater (14, C.T.R. 939) an action for damages for injury to immovable property by a tenant thereof had been instituted by a married man who sued as owner of the property, and after issue of the summons it was found that the property was registered in the name of his wife. He then applied for substitution on the record as plaintiff of his wife, married without community to him, and assisted by him. There was no proof before the Court that the wife, who was absent from the Colony, had agreed to the institution of the action, and no power of attorney executed by her was filed as required by the Rules of Court. The application was refused on that ground and therefore it does not support Mr. Miller's first point.

In Buck v Green (1932 NPD 425) an action was brought for damages for personal injury, including certain special damage consisting of expenditure on medical fees and special foods, by a married woman who described herself as married in community and assisted by her husband. Exception was taken to the declaration on the ground that...